Mission accomplished, liberal law professors momentarily embarrassed

We won. All the arguments that the law professors said were frivolous were affirmed by a majority of the court today. A majority of the court endorsed our constitutional argument about the Commerce Clause and the Necessary and Proper Clause.

I have enormous respect for Professor Barnett, and he deserves major credit for shaping and advocating the legal argument that the individual mandate in Obamacare cannot be sustained under the Commerce Clause. Moreover, because that argument prevailed, Professor Barnett did win.

But for ordinary conservatives, as opposed to long-beleaguered conservative law professors, this case wasn’t about proving law professors wrong; it was about limiting the power of the government by overturning the coercive mandate. That objective was not achieved.

As for the impact of the Court’s Commerce Clause ruling on future cases, I agree with John who says:

This holding is very narrow, limited to the perhaps unique case where Congress wants to regulate inaction because it affects interstate commerce. In over 200 years, there has never before been an instance where such an argument has been made on behalf of the constitutionality of a federal statute, and it may never need to be made again.

I also contend that if the argument ever is needed again, its success probably will be determined by the ideological composition of the Court, not by the Obamacare decision.

Yesterday’s decision stands, above all else, for the well-established proposition that it is extremely difficult for Justices appointed by Republican presidents to reach consensus in big cases on outcomes (as opposed to statements) that most conservatives believe are correct under the law.